### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Defendant Below, 

### FILED

Respondent August 31, 2015

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS vs) No. 14-0951 (Raleigh County 87-F-546)

OF WEST VIRGINIA

Jamal A. Azeez, Plaintiff Below,

Petitioner



### MEMORANDUM DECISION

Pro se petitioner Jamal A. Azeez appeals the Circuit Court of Raleigh County’s August 25, 2014, order denying his petition for writ of error coram nobis . The State of West Virginia, by counsel Nic Dalton, filed a response. 1 Petitioner filed a reply. On appeal, petitioner raises eight assignments of error.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Following a jury trial in July of 1987, petitioner was convicted of second-degree sexual assault. This conviction stemmed from an incident in which petitioner sexually assaulted a patient at a hospital where he was employed. Thereafter, the circuit court sentenced petitioner to a term of incarceration of ten to twenty years. 2 In June of 1988, petitioner filed a direct appeal with this Court, wherein he raised the following assignments of error: 1) permitting the victim’s testimony without a finding of her competency to testify; 2) admitting Dr. Rasheed’s deposition in the absence of a showing that she was unavailable to testify; 3) allowing the admission of the results of the vaginal swab in light of the mishandling of such evidence by the hospital; 4) denying petitioner’s motion to compel the victim to submit to a psychiatric evaluation; 5)denying petitioner the victim’s psychiatric records; and 6) allowing the jury to consider seconddegree sexual assault in the absence of evidence of all the elements thereof. Petitioner renewed this petition for appeal on July 26, 1988. The Court refused both petitions for appeal.

1 The Court notes that after the briefing period expired in this matter, we held that, “[i]n West Virginia, the common law writ of error coram nobis is available only in criminal proceedings.” Syl. Pt. 3, State v. Hutton , -- W.Va. --, -- S.E.2d --, 2015 WL 3822814 (W.Va. June 16, 2015).

2 Petitioner fully discharged his sentence and has been released from incarceration.

1In June of 1992, petitioner, by counsel Hon. Franklin D. Cleckley, filed a petition for writ of habeas corpus. In his habeas petition, petitioner argued that the circuit court erred: 1) in finding that petitioner was not deprived of a fair criminal trial as guaranteed under Article III, Section 10 of the West Virginia Constitution where the criminal trial court permitted an incompetent witness to testify against him at trial; 2) in finding that petitioner was not denied a fair criminal trial as guaranteed by the state and federal constitutions where the criminal trial court failed to order a mental examination of the alleged victim and the prosecuting attorney failed to make a good faith effort to obtain and produce the complete medical and mental health records of the alleged victim; 3) in finding that petitioner’s rights under the Equal Protection Clause of the Fourteenth Amendment were not violated where the trial court permitted the prosecuting attorney to exercise a peremptory challenge to remove a black juror from the jury venire without establishing any legitimate non-discriminatory reason; 4) in finding that petitioner’s rights under the Equal Protection Clause of the Fourteenth Amendment were not violated by the prosecution’s peremptory challenge of a black juror because he was not a member of the “black” or “Negro” race; 5) in failing to find that petitioner’s rights under the Fourteenth Amendment were violated by the prosecution’s suppression of and/or failure to reveal an exculpatory physical examination of the alleged victim, which indicated that she had not been raped; and 6) in finding that petitioner’s rights under the Confrontation Clause of the Sixth Amendment were not violated by the admission of Dr. Rasheed’s deposition testimony, absent a showing that she was unavailable as a witness or that the prosecution made a good faith effort to obtain her presence at trial. Following an omnibus evidentiary hearing, the circuit court denied petitioner habeas relief. Petitioner appealed that denial to this Court.

In January of 1995, this Court heard oral arguments on petitioner’s appeal of the circuit court’s order denying habeas relief. By order entered July 13, 1995, this Court affirmed the

circuit court’s order. See State ex rel. Azeez v. Mangum , 195 W.Va. 163, 465 S.E.2d 163 (1995). Two years later, petitioner filed a second petition for writ of habeas corpus in the circuit court, which was summarily denied based upon res judicata

.

In August of 2013, petitioner filed a petition for writ of error coram nobis . The State filed a response, or alternatively, a motion to dismiss, arguing that petitioner’s claims have previously been fully and finally adjudicated on the merits. Petitioner filed a reply. Following an evidentiary hearing in April of 2014, the circuit court denied petitioner relief based upon res judicata and collateral estoppel because petitioner’s grounds for relief were previously litigated in the Circuit Court of Raleigh County, this Court, and the United States District Court for the Southern District of West Virginia. It is from this order that petitioner appeals.

In this proceeding, we are called upon to review the circuit court's order denying petitioner coram nobis relief. In reviewing challenges to the findings and conclusions of the circuit court, we apply the following standard of review:

“We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo

review.”

2State v. Allen, 208 W. Va. 144, 150, 539 S.E.2d 87, 93 (1999) (quoting Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W. Va. 108, 492 S.E.2d 167 (1997)).

On appeal to this Court, petitioner reasserts the same claims that were raised during petitioner’s direct appeal and in the circuit court, including that the circuit court erred in denying his petition for writ of error coram nobis based upon res judicata , and denying his claims of prosecutorial and police misconduct, ineffective assistance of counsel, and judicial prejudice. This Court recently held that

a claim of legal error may be brought in a petition for a writ of error coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) there exists a substantial adverse consequence from the conviction; and (4) the error presents a denial of a fundamental constitutional right.

Syl. Pt. 5, State v. Hutton , -- W.Va. --, -- S.E.2d --, 2015 WL 3822814 (W.Va. June 16, 2015). Upon our review and consideration of the circuit court’s order, the parties’ arguments, and record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s decision to deny petitioner’s petition for writ of error

coram nobis . Under the specific facts of this case, petitioner failed to satisfy the necessary

criteria enumerated in Hutton

. Id . Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the assignments of error raised on appeal. Given our conclusion that the circuit court’s order and the record before us reflect no clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a copy of the circuit court’s August 25, 2014, “Order Denying Writ of Error Coram Nobis, Denying Motion to Reconsider, Denying Motion to Dismiss and Order Dismissing Case” to this memorandum

decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED : August 31, 2015

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II

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